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Legal Update 9/14/12

Dear Neighbors,

As most of you know, a request for a declaratory judgment on the
question of whether the Club’s members have special rights of access to
the Clifton Park Trust property was filed on June 6, 2012. The Club
asked for a 30 day extension to respond which we did not oppose. Instead
of responding to the issues themselves, the Club responded with a
motion to dismiss, carefully avoiding the merits of the dispute. That
motion misconstrues our position while trying to argue that we, despite
being Trust beneficiaries, have no standing. It attempts to confuse,
complicate and unnecessarily enlarge the process of answering the simple
question we have presented to the court.

Our response, filed Sept 14,
begins by clarifying that “This case is about the Clifton Club
Company’s attempts to effectively strip Clifton Park homeowners of their
right of private access and enjoyment of Clifton Beach, essentially
converting private beach property into quasi-public property.The
dispute in this case is over the interpretation of a deed of trust
granting beneficiaries the “sole use and benefit of” certain property in
the Clifton Park Allotment, including access to and enjoyment of
Clifton Beach.The language of the deed of trust at issue is unambiguous and undisputed.Thus,
the simple issue presented to the court is whether non-beneficiaries
under a trust have the same rights to use certain property as do
beneficiaries, where the trust specifically and exclusively grants such
rights only to beneficiaries.”

Our
response affirms that the plaintiffs have legal standing and also
addresses all the attempts to twist and confuse this action with an
uncommonly clear and simply written legal document.

Let’s
all keep in mind that misinformation is the fuel that keeps conflicts
burning. An accurate understanding of the facts is the foundation of any
problem solving process.

Their
motion substantially misstates the facts of the case. It states we aim
to make their deed “null and void” and that we are trying to modify the
terms of their deed, both of which are incorrect. We seek a judicial
answer as to whether all of the non-resident club members (currently at
around 230) are equal to Park residents with respect to Beach access
rights.In the Clifton Park Trust Deed,
only sub lot owners of the Park are mentioned and the Clifton Club
Company’s subsequent deed cannot modify the Trust. There is
interestingly no mention of the Clifton Club in the Clifton Park Trust.

The
facts of this matter are that the historical position taken by the
former Clifton Park Trustees was that all access to the Beach granted to
the Clifton Club’s members was under the control of the Trustees as a
form of licensure for access. They understood that the Clifton Club’s
deed of 4 lots and the Trust did not give the Club a legal right for
access for all of its members. Its deed was written identically to all
the other deeds of the Park (accept allowing it to function as a social
club) granting
the Clifton Club a right to Beach access equal to and no different from
that of any other lot owner. Earlier Trustees and Club leaders were in
agreement on this view.

The
current Club leadership has taken a different view claiming it has a
right to Beach access for all of its members derived from their new
interpretation of the Club’s deed. If this newly claimed right is
accepted, then the Trustees would lose the ability to set a fee for the
Club members Beach access and the Club would have the right to pay only
an assessment based on the value of their lots according to the Trust
formula while allowing as many members they wish to have Beach access or
picnic table reservations.

This is a situation where one of these two positions
is legally correct. There is no legal middle ground allowing partial
interpretation or an “a la carte” approach. That kind of solution can
only be found through discussions between the parties.

Our
view has been that the former Trustee interpretation was correct and
should be continued. We oppose the change in interpretation which will
occur if we are silent. That change would more than double the number of
beneficiaries in the Clifton Park Trust and allow unlimited Beach
access for the Club’s members. That change should only be made if
confirmed by a formal legal judgment.

Our
opposition to this change in interpretation of the Club’s rights was
repeatedly discussed with the current Trustees and the current Clifton
Club’s leaders in order to find an amicable solution. There clearly was
no need for this change as the Club was historically well cared for by
the Trustees through all its difficult times during which it was in
essence subsidized by the Park residents as the Club’s cost for its
access for members was reduced.

Another
misrepresentation being made is about our intent. We keep hearing that
we are out to “close the Club”. We have repeatedly stated that we are
not and have worked with Club leadership and their representatives for a
long time to find alternative means to resolve this conflict prior to
filing the request for a declaratory judgment.

Lastly, the Clifton Club Company is asserting in court that the Trustees and all Park residents should be sued in this case.The Wallace et al v Clifton Land Company
case in 1915 which went to the Ohio Supreme court for review and other
case law, supports that a dispute between two beneficiaries of this
Trust need not involve more than the opposing beneficiaries. The
Trustees were not sued as they are simply servants of the Trust. We will
certainly follow the courts direction in this matter but wish the Club
had moved towards resolution rather than unnecessary delay and
enlargement of this process. That step will not change the outcome and
will only lead to a need for a more prolonged reparative process.

We
have and continue to remain open to discussion on how to find a less
formal solution, but are not prepared to simply give up our deeded home
owner rights.

Sincerely,

Arthur Dueck,Todd Gilmore,Nancy Binder,William Keller

Legal Update 6/8/12

Hello Neighbors,

Many of you have
received a letter outlining the very sad situation we have found
ourselves dealing with. For many months, residents of Clifton Park have
met with both our Trustees and the Club’s leadership to try to resolve
the question of beneficial ownership of the Trust that the Club’s
assertion of equal ownership rights for its members has provoked.

An impasse has been
reached and a legal action called a declaratory judgment has been filed
this week. It simply asks the court to rule on the question of what
rights of access to the common land (Beach) the Trust deed and the deed
of land purchase grant the Club.

Prior Trustees and the
plaintiffs believe that the access for the Club’s members was and
should continue to be through a voluntary yearly license agreement
managed by the Park Trustees in a manner that prevents any loss of Beach
access and enjoyment by the beneficial lot owners. The Current Club
leadership has asserted that it has a right to Beach access for its
members through its interpretation of its land purchase deed. Settling
this question will allow us all to move forward on a secure foundation.

The complaint is a
very simply request for a judicial clarification of the specific rights
held by the Club. It need not become complicated or drawn out and could
progress quite peacefully unless either party begins to try to use legal
or other tactics to their advantage. We hope that will not be the case.

We are in no way “out
to close the Club” as we have been hearing. Conversely, we will not
allow the compromise of our ownership and enjoyment of the Beach. We
wish the Club no harm but want the Club to stop hurting us. We value the
presence of the Club and the longstanding relationship between the Park
and the Club. We hope that the Club leadership reviews its course in
the context of that relationship and its role as a member of this unique
community.

We will remain open to dialogue with the Club’s leaders and our Trustees to search for alternative solutions.